METFORD & FADDIN (No.4) - [2018] FCCA 3960

FEDERAL CIRCUIT COURT OF AUSTRALIA

METFORD & FADDIN (No.4)

[2018] FCCA 3960

Catchwords:
FAMILY LAW – Children – failure to comply with order.

Legislation:

Family Law Act 1975 (Cth), ss.60CA, 60CC, 69ZR

Applicant:

MR METFORD

Respondent:

MS FADDIN

File Number:

BRC 9993 of 2017

Judgment of:

Judge Cassidy

Hearing date:

17 July 2018

Date of Last Submission:

17 July 2018

Delivered at:

Hervey Bay

Delivered on:

18 July 2018

REPRESENTATION

For the Applicant:

Self-represented

Solicitors for the Respondent:

Baker O'Brien & Toll

ORDERS

THE COURT ORDERS UNTIL FURTHER ORDER:

That the application be adjourned to 24 August 2018 at 9:45am for final hearing (with an estimated hearing time of one (1) day) in the Federal Circuit Court of Australia sitting at Brisbane.
That in the event of any applicable filing, setting down, hearing, mediation or enforcement fee or fees (“the fees”) not having been reduced on the basis of financial hardship, the party responsible for the payment of the fees or any of them, pay or cause to be paid such of the fees as shall be payable by that party in accordance with, and within the time specified in, the Family Law (Fees) Regulations 2012.
That each party file and serve on each other party no later than 4:00pm on 17 August 2018:
(a)One updating affidavit setting out any further evidence in chief including evidence in relation to costs; and
(b)One affidavit of each witness intended to be relied upon at trial.
That each party file and serve on each other party no later than 4:00pm on 17 August 2018, a case outline setting out:
(a)A precise minute of the final orders sought;
(b)A relevant chronology;
(c)A list of affidavits and applications and/or responses (where appropriate) intended to be relied upon at trial; and
(d)A statement of evidence which they say supports the principles contained in section 60CC of the Family Law Act 1975.
That no party shall be entitled to rely on any affidavit material not filed and served in accordance with these directions without leave of the Court first had and obtained.
That in the event that either party wishes to cross examine the family report writer at the final hearing, that party shall provide written notice to the family report writer of such intention no later than 4:00pm on 10 August 2018. In the event that no such notice is given to the family report writer or the family report writer is unavailable, the family report will be admitted into evidence without cross examination.
That commencing Thursday 26 July 2018 and during the school term the children shall spend time and communicate with the father every second week from the conclusion of school Thursday until the commencement of school Tuesday, and if Tuesday is a pupil free day or public holiday then changeovers shall occur at Location D, Town K at 8:00am.
That for the purposes of school holidays changeover, changeovers occur at 3:00pm at Location D, Town K.
That the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] FCCA 3960
Decision Date: 18 July 2018

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, Judge Cassidy presided over proceedings concerning an application related to children and alleged failure to comply with a court order. The specific details of the dispute between the parties, Metford and Faddin, are not fully elaborated in the provided text, but the context points to a family law matter involving parenting arrangements.

The court was required to determine the future conduct of the proceedings, including the scheduling of a final hearing and the procedural steps necessary for that hearing. This involved setting deadlines for the filing and service of evidence, case outlines, and specifying requirements for potential cross-examination of a family report writer. The court also needed to address the payment of court fees and the admission of affidavit material.

Judge Cassidy made several orders to manage the case towards a final hearing. These included adjourning the matter for a final hearing on 24 August 2018, with directions for parties to file updating affidavits and case outlines by 17 August 2018. The court also stipulated that any reliance on affidavit material not filed and served in accordance with these directions would require leave. Furthermore, specific notice requirements were set for parties wishing to cross-examine the family report writer, with the family report to be admitted without cross-examination if notice was not given or the writer was unavailable. The court also made orders regarding the children's time with the father during school terms and holidays, and reserved the applicant's costs of $4,682 to the trial. The orders also noted that particulars of obligations and consequences for contravening parenting orders were set out in a specified document.

Orders

Orders of the court

THE COURT ORDERS UNTIL FURTHER ORDER:

That the application be adjourned to 24 August 2018 at 9:45am for final hearing (with an estimated hearing time of one (1) day) in the Federal Circuit Court of Australia sitting at Brisbane.

That in the event of any applicable filing, setting down, hearing, mediation or enforcement fee or fees (“the fees”) not having been reduced on the basis of financial hardship, the party responsible for the payment of the fees or any of them, pay or cause to be paid such of the fees as shall be payable by that party in accordance with, and within the time specified in, the Family Law (Fees) Regulations 2012.

That each party file and serve on each other party no later than 4:00pm on 17 August 2018:

(a) One updating affidavit setting out any further evidence in chief including evidence in relation to costs; and

(b) One affidavit of each witness intended to be relied upon at trial.

That each party file and serve on each other party no later than 4:00pm on 17 August 2018, a case outline setting out:

(a) A precise minute of the final orders sought;

(b) A relevant chronology;

(d) A statement of evidence which they say supports the principles contained in section 60CC of the Family Law Act 1975.

That no party shall be entitled to rely on any affidavit material not filed and served in accordance with these directions without leave of the Court first had and obtained.

That in the event that either party wishes to cross examine the family report writer at the final hearing, that party shall provide written notice to the family report writer of such intention no later than 4:00pm on 10 August 2018. In the event that no such notice is given to the family report writer or the family report writer is unavailable, the family report will be admitted into evidence without cross examination.

That commencing Thursday 26 July 2018 and during the school term the children shall spend time and communicate with the father every second week from the conclusion of school Thursday until the commencement of school Tuesday, and if Tuesday is a pupil free day or public holiday then changeovers shall occur at Location D, Town K at 8:00am.

That for the purposes of school holidays changeover, changeovers occur at 3:00pm at Location D, Town K.

That the costs sought by the Applicant fixed in the sum of $4,682 be reserved to the trial.

NOTATION:

A. That both parties will be providing Ms H with further material to read and consider, and it is requested that the family report writer read and consider that material prior to the hearing on 24 August 2018.

B. That pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in “Parenting orders – obligations, consequences and who can help” and these particulars are included in these Orders.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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